The trial court denied the motion to
suppress.� It stated, "I accept the deputy's testimony that he wasn't
investigating this defendant for any wrongdoing.� He was investigating whether
the store was violating the statute [prohibiting furnishing obscene materials
to minors].� So actually, he was investigating whether this gentleman, the
defendant, was a victim of a crime."� In the court's view, a crime victim
"would think they would do some sort of investigation to see if you were a
victim * * *."� The court stated that, in an analogous case in which the
person was suspected of a crime, it would "probably say it's an invalid
stop," but, because the encounter was a "minim[al] intervention to
see if [defendant was] a victim," the analysis in Hall did not
apply.� It therefore concluded that Gerba had not stopped defendant, and it
denied the motion.

Defendant waived the right to a jury
trial, and he agreed that the court could consider, for trial purposes, the
evidence presented in the suppression hearing.� In addition to that evidence,
the state offered, and the court admitted, certified records from Driver and
Motor Vehicle Services showing that defendant's license had indeed been
revoked.� The court then convicted defendant.

On appeal, defendant renews his
contention that Gerba stopped him without reasonable suspicion and learned his
identity and that his license had been revoked only as a result of the stop.�
In response, the state first argues that defendant's interaction with Gerba did
not amount to a stop.� The state notes that, unlike in cases such as Hall,
in which the police ran a warrant check in the defendant's presence, here,
Gerba "merely called in the ID number to check if it was valid--not to
determine if defendant was a wanted criminal--and promptly gave defendant back
his ID" and ended the encounter.� In the state's view, Gerba did not
intentionally and significantly interfere with defendant's liberty of movement,
and a reasonable person would not have believed that he had.� The state goes on
to argue that, even if defendant was stopped, the evidence that he seeks to
suppress was not a product of the stop.� In support of that argument, the state
contends that (1) defendant failed to show a "minimal factual nexus"
between the stop and the evidence that he seeks to suppress; (2) the evidence
was available from an independent source; and (3) the connection between the
stop and the evidence is so attenuated that the stop cannot properly be viewed
as the source of the evidence.

The first question before us is
whether Gerba stopped defendant.� To be lawful, a stop must be justified by
reasonable suspicion of criminal activity.� State v. Toevs, 327 Or 525,
534, 964 P2d 1007 (1998).� It is undisputed that Gerba did not suspect that
defendant was involved in criminal activity.� Thus, if Gerba stopped defendant,
the stop constituted an unlawful seizure.� For purposes of Article I, section
9, of the Oregon Constitution, a stop occurs "(a) if a law enforcement
officer intentionally and significantly restricts, interferes with, or
otherwise deprives an individual of that individual's liberty or freedom of
movement; or (b) whenever an individual believes that (a), above, has occurred
and such belief is objectively reasonable in the circumstances."� State
v. Holmes, 311 Or 400, 409-10, 813 P2d 28 (1991).� Police conduct
interfering with a person's liberty of movement may take the form of either
physical force or a show of authority.� State v. Juarez-Godinez, 326 Or
1, 6, 942 P2d 772 (1997).� A show of authority effects a stop if it leads the
person to subjectively believe that he or she is not free to leave and that
belief is objectively reasonable.� State v. Ruiz, 196 Or App 324, 327,
101 P3d 824 (2004), rev den, 338 Or 363 (2005).� Determining whether a
stop has occurred requires a "fact-specific inquiry into the totality of
the circumstances of the particular case."� Holmes, 311 Or at 408.

As noted, the trial court concluded
that a reasonable person would not view a brief detention to determine whether
he or she is a crime victim as a significant intrusion on his or her liberty.�
Under the circumstances here, however, a reasonable person would not
necessarily have believed that he or she was regarded solely as a potential
victim.� That is, even if a reasonable person would have understood that
Gerba's initial concern was that the store owner may have been furnishing
obscene materials to minors, such a person could have believed that Gerba was
also investigating whether defendant and his girlfriend had given him false
identification or whether there were any outstanding warrants for their
arrest.� There would seem to be no reason for Gerba to call dispatch with the
ID numbers other than to determine the authenticity of the cards or to conduct
a warrant check.� Although Gerba's subsequent actions demonstrated that he was
not going to require defendant and his girlfriend to wait for the results of
that inquiry to dispatch, until he told them "Have a nice day" and
walked away, a reasonable person in the same circumstances could have believed
that he or she was not free to leave.� Thus, although the encounter was brief,
a reasonable person could have viewed it as a stop.

The question remains whether
defendant subjectively believed that he was not free to leave.� The trial court
did not make a finding on that issue.� It follows that we must remand for such
a determination.(1)

The state argues that we need not
remand, contending that, even if Gerba stopped defendant, the evidence that
defendant seeks to suppress is not a product of the stop.� For purposes of
analyzing that argument, the encounter is presumed to have been a stop, and
this opinion refers to it as such, with the understanding that, depending on
the trial court's findings on remand, it may not actually have been a seizure
within the meaning of Article I, section 9.

For evidence to be suppressed as a
product of police illegality, a defendant must establish "a minimal
factual nexus--that is, at minimum, the existence of a 'but for'
relationship--between the evidence sought to be suppressed and prior unlawful
police conduct * * *."� Hall, 339 Or at 25.� If the defendant
succeeds, the state may nevertheless show that the evidence is admissible by
proving that it did not derive from the police illegality.�

"To make that showing, the state must prove that either
(1) the police inevitably would have obtained the disputed evidence through
lawful procedures even without the violation of the defendant's rights under
Article I, section 9; (2) the police obtained the disputed evidence
independently of the violation of the defendant's rights under Article I,
section 9; or (3) the preceding violation of the defendant's rights under
Article I, section 9, has such a tenuous factual link to the disputed evidence
that that unlawful police conduct cannot be viewed properly as the source of
that evidence."

Id. (citations omitted).

As noted above, the state first
contends that defendant failed to establish a factual nexus between the stop
and the evidence.� According to the state, assuming--as defendant argues--that
the stop began at the moment that Gerba called defendant's identification
number to dispatch, the officer already had the information that enabled him to
determine that defendant's driving privileges were revoked--namely, defendant's
name and ID number.� Thus, in the state's view, Gerba did not obtain any
evidence as a result of the stop.

The state is correct with respect to
evidence of defendant's identity.� Defendant voluntarily produced his ID card
and gave it to Gerba before the stop began.� Whether Gerba actually read the
information on the ID card before calling it in is irrelevant.� Gerba may have
internalized the information simultaneously with the commencement of the stop,
but he did not obtain it as a result of the stop.� Therefore, that evidence of
defendant's identity is not subject to suppression.(2)

The state is incorrect, however, with
respect to the evidence that came to light after the stop began.� Even though
defendant gave Gerba the ID card before Gerba called the information in, but
for the act of calling it in--the very act that effected the stop--Gerba would
not have known that defendant's license had been revoked.� The call to dispatch
is an essential factual link between Gerba's obtaining defendant's name and ID
number and his discovery that defendant's license had been revoked.� But for
that discovery, Gerba would not have known that defendant was driving illegally
when he left the store.� It follows that he also would not have arrested
defendant and that the state would not have obtained the DMV records that were
taken into evidence at defendant's trial.� In other words, but for the stop,
none of the evidence (other than defendant's identity) would have come to
light.� Therefore, defendant established the necessary factual nexus between
the stop and the evidence obtained after the stop began.

The state next argues that that
evidence did not derive from the stop, because it was available from an
independent source--again, because Gerba already had obtained defendant's name
and ID number before the stop began.� The state essentially recasts its
"factual nexus" argument as an "independent source"
argument.� The state's argument remains unpersuasive.� Although Gerba obtained
defendant's name and ID number before the stop began, his discovery of the fact
that defendant's license had been revoked did not flow from that information
independently of the stop.� The "independent source" exception to the
exclusionary rule applies when the police "did in fact acquire
certain evidence by reliance upon an untainted source[.]"� Wayne R.
LaFave, 5 Search and Seizure � 11.4(a), 241 (3d ed 1996) (emphasis
added).� Thus, the fact that the evidence in question was available from an
independent source--because Gerba could have conducted the same records
check without stopping defendant--is irrelevant.� Again, but for the stop, defendant's
name and ID number would not have led to Gerba's discovery of the fact that
defendant's license had been revoked or his awareness that defendant was
driving illegally.� Evidence of those facts thus cannot be said to be
independent of the stop.

The state finally argues that the
connection between the stop and the evidence in question is so attenuated that
the stop cannot properly be viewed as the source of the evidence.� The state
asserts that Gerba's knowledge that defendant's license had been revoked had no
evidentiary significance before Gerba saw defendant get into a car and drive
away.� In the state's view, only that intervening act by defendant
"transformed that inconsequential piece of information into evidence of a
crime."� The state contends that the facts here are analogous to the
discovery of an outstanding arrest warrant for the defendant, which operates to
attenuate the taint of prior illegal police conduct.

The state does not explain why
evidence obtained by illegal police conduct is attenuated from that conduct
merely because the police are not aware of its evidentiary significance when
they obtain it.� Although the stop by itself did not produce sufficient
information to prompt Gerba to arrest defendant, the information that the stop did
produce was an essential factor in his decision to arrest defendant.� Thus, it
cannot be said that the stop was not the source of the evidence that defendant
was driving while revoked.� See Hall, 339 Or at 25 (evidence is not
subject to suppression if "the preceding violation of the defendant's
rights under Article I, section 9, has such a tenuous factual link to the
disputed evidence that that unlawful police conduct cannot be viewed properly as
the source of that evidence" (citation omitted)).

This case is not analogous to those
in which the police discovered an outstanding arrest warrant after illegally
stopping the defendant.� The line of cases on which the state relies began with
State v. Dempster, 248 Or 404, 434 P2d 746 (1967).� In that case, the
Supreme Court explained that an outstanding arrest warrant can serve to
attenuate the link between a police illegality and evidence discovered
thereafter because, once the warrant is discovered, the police are bound to
obey its command and arrest the defendant.� Id. at 407-08.� In
circumstances such as those in the Dempster line of cases, an
outstanding arrest warrant is based on information that was unquestionably
obtained by the state independently of the illegal stop--given that the warrant
was already outstanding when the stop occurred--and has already been judicially
determined to establish probable cause to arrest the person named in the
warrant.� Any search incident to the lawful arrest on the warrant is thus
purged of the taint of the earlier police illegality.� For that reason, even
though the police would not have discovered the warrant but for the illegal
stop, evidence that the police discover after the warrant is executed is
attenuated from the illegal stop.

In this case, there was no similar
command to arrest defendant that Gerba was bound to obey.� Moreover, unlike the
information leading to the issuance of the arrest warrants in the Dempster
line of cases, at least some of the information that formed Gerba's decision to
arrest defendant was a direct product of the initial stop.� The intervening
circumstance on which the state relies--defendant's driving away from the
store--did not, by itself, provide a sufficient basis for Gerba to arrest him.�
In Dempster, on the other hand, the intervening circumstance that
created the attenuation--the arrest warrant--did by itself provide a
sufficient basis for arresting the defendant. �The state's argument that this
case is analogous to Dempster therefore fails.

The concurring opinion
contends that, if the stop did not begin until Gerba called dispatch, defendant
suffered no constitutionally cognizable detriment from the stop, so suppression
is not required.� The dissent agrees with that aspect of the concurring
opinion.� The concurrence rightly asserts that our analysis must be consistent
with the principle that evidence is not subject to suppression if "the
defendant is not placed in a worse position than if the governmental officers
had acted within the bounds of the law."� Hall, 339 Or at 25.� The
approach taken by the concurrence, however, goes astray in two respects.�
First, in determining whether defendant was placed at a disadvantage, it
focuses on the circumstances of Gerba's conduct rather than the conduct
itself.� The concurrence notes that, under the reasoning reflected in this
opinion, defendant's presence during the call to dispatch is the circumstance
that transformed otherwise lawful police conduct into an unlawful stop.� ___ Or
App at ___ (Haselton, P. J., concurring) (slip op at 13).� From there, it
argues that "defendant was not placed in any constitutionally cognizable
'disadvantage' vis-�-vis his ultimate arrest because of that
circumstance."� Id. at ___ (emphasis added) (Haselton, P. J.,
concurring) (slip op at 12).� The question is not whether a defendant is
disadvantaged by the circumstances that render police conduct illegal,
but whether he or she is disadvantaged by the conduct that the police
engaged in--in this case, calling dispatch with defendant's identification
information.�

Second, the concurrence goes astray
when comparing defendant's position to the position he would have been in had
the illegal conduct not occurred.� It contends that "defendant was 'not placed
in a worse position' with respect to his arrest than if Gerba 'had acted within
the bounds of the law' by contacting dispatch out of defendant's
presence."� Id. at ___ (quoting Hall, 339 Or at 25)
(Haselton, P. J., concurring) (slip op at 13).� But the concurrence does not
consider the position defendant would be in had Gerba simply refrained from
engaging in the conduct that violated defendant's constitutional rights.�
Rather, it considers the position defendant would be in had Gerba done
something different--namely, calling dispatch later, when defendant was no
longer in his presence.� In many search and seizure cases involving illegal
police action, we likely could say that the police could have taken a different
course of action--one that remained "within the bounds of the
law"--and obtained the same evidence.� It is inappropriate to determine
the defendant's relative position by considering hypothetical lawful conduct
that the police could have engaged in (but did not) or hypothetical
circumstances that would have rendered the police conduct lawful (but which
were not present).� Rather, the defendant's relative position should be
determined by considering the position he or she would be in had the police
refrained from engaging in the unlawful conduct, without speculating about what
the police might lawfully have done thereafter.

Under the circumstances of this case,
calling dispatch with defendant's identification information was (presumably,
for present purposes) illegal.� In determining whether the evidence should be
suppressed, we must consider the position defendant would be in had Gerba not
done that, without regard to anything else that Gerba might have done.�
The answer is obvious:� Had Gerba not called dispatch, he would not have
discovered that defendant's license had been revoked, he would not have known
that defendant was driving illegally, and he would not have arrested
defendant.� In short, this case would not have been brought against defendant
had Gerba not made the call to dispatch.� Defendant was clearly "placed in
a worse position" by Gerba's having acted outside the bounds of the law.� Respectfully,
the conclusion reached by the concurrence and the dissent is incorrect.

To summarize, regardless of whether
Gerba stopped defendant or not, the trial court correctly ruled that evidence
of defendant's identity is not subject to suppression.� If defendant was in
fact stopped, however, the stop was unlawful and evidence of the facts that
defendant's license had been revoked and that he was driving illegally was
tainted by the unlawful stop.� On remand, the trial court shall determine
whether defendant subjectively believed that he was not free to leave when
Gerba called dispatch with his identification information.� If the court finds
that defendant did not hold that belief, it should reinstate defendant's
conviction.� If it finds that he did hold that belief, the evidence must be
suppressed.

The lead opinion rests on the premise
that the stop did not occur until Deputy Gerba actually contacted dispatch.� See
___ Or App at ___ (characterizing Gerba's call to dispatch as "the very
act that effected the stop") (slip op at 8).� However, as amplified below,
if the stop began at that point, there would be no basis for suppression under State
v. Hall, 339 Or 7, 115 P3d 908 (2005), because no inculpatory information
was obtained from defendant, by way of questioning, consent, or observation,
during or immediately after the stop.

Conversely, in my view, the stop
began earlier--when, in response to Gerba's inquiries, defendant produced, and
Gerba took, defendant's driver's license.� At that point, "in the
totality of the circumstances * * * 'a reasonable person in defendant's
position could have believed' that he was not free to go."� State v.
Parker, 225 Or App 610, 615, 202 P3d 205, adh'd to as modified on recons,
227 Or App 413, 206 P3d 259 (2009) (quoting State v. Toevs, 327 Or 525,
536, 964 P2d 1007 (1998)); see also State v. Ashbaugh, 225 Or App 16,
24-25, 200 P3d 149 (2008), rev allowed, 346 Or 257 (2009).� And it was
at that point--before Gerba ever contacted dispatch--that Gerba obtained
ultimately inculpatory information from defendant, viz., defendant's
identification and date of birth, which, in turn, yielded the information that
defendant's driving privileges had been suspended.� Consequently, unless the
trial court determines on remand that defendant did not subjectively believe
that his freedom of movement had been significantly restrained, see, e.g.,
Ashbaugh, suppression is required.

At first blush, that distinction with
respect to the timing of the operative stop may seem to be academic, perhaps
even metaphysical--after all, defendant was stopped, and the difference is a
matter of only a few seconds.� However, that distinction has profound
implications regarding Hall's proper application, which I will endeavor
to explain below.� See ___ Or App at ___ (slip op at 11-13).

The facts material to our review of
the trial court's denial of suppression are undisputed and straightforward.�
Defendant and his girlfriend, Rodriguez, were shopping late at night in an
adult novelty and book store.� That establishment was posted as excluding
anyone under the age of 18.� Gerba, who was on patrol (and, thus, presumably
was in full uniform), entered the store and, immediately upon seeing defendant
and Rodriguez, "contacted" them because "on the door it says
you've got to be 18 or older."� Gerba asked defendant and Rodriguez how
old they were, and defendant replied that he was 22 years old.� Gerba, who was
unsatisfied with that response because "he looked pretty young to
me," then asked defendant and Rodriguez if they had any identification.�
In response, defendant and Rodriguez then handed their driver's licenses to
Gerba, who took them and retained them for 10 to 15 seconds, during which he
contacted dispatch, which "[r]an the numbers."� Gerba did so to
confirm that defendant's and Rodriguez's licenses were genuine, not
"fake."� Gerba then returned the licenses and said, "[H]ave a
good day."

Gerba then left the store and,
immediately thereafter, dispatch responded that defendant's identification was
genuine but his driving privileges had been suspended.� Gerba returned to his
patrol car and continued to watch the store for security purposes.� About five
minutes later, he saw defendant and Rodriguez come out of the store and get
into a car, with defendant driving.� Based on the information obtained from
dispatch, Gerba stopped and arrested defendant for driving while suspended.

Defendant was subsequently charged
with misdemeanor driving while revoked, ORS 811.182.(2)�
Defendant moved to suppress all evidence that was the product of his encounter
with Gerba in the store--including his identity and date of birth, dispatch's
consequent communication to Gerba that defendant's driving privileges had been
"suspended," and the arrest that was predicated on that information.�
The trial court denied suppression and convicted defendant.

I begin with the first two,
interrelated questions of whether, and when, defendant was unlawfully stopped.�
The question of timing here is especially critical because, with respect to
defendant's ultimate arrest, the only inculpatory information that Gerba
obtained from defendant, by questioning, consent, or observation, was defendant's
name and date of birth, which Gerba did not know until he took and inspected
defendant's driver's license.� Thus, if defendant were unlawfully stopped at
the time that Gerba took his license, that would be a quintessential Hall
scenario, in which inculpatory information was elicited or obtained during or
following an unlawful stop.� Conversely, if the stop did not begin until
thereafter, the circumstances would depart qualitatively from those within the
standard Hall construct because the only inculpatory information
elicited from defendant would have been obtained before the stop.

Defendant (perhaps appreciating the
importance of that distinction) argues that he was stopped "[a]t the
moment [Gerba] took and retained defendant's ID for the purposes of calling his
information into dispatch in defendant's presence."� That contention
appears to be based on either, or both, of two propositions:� (1) An officer's
mere physical receipt of a citizen's driver's license or similar identification
in and of itself effects a stop, regardless of the attendant circumstances or
how long the document is in the officer's possession.� (2) Even if an officer's
receipt and possession of a driver's license or identification does not per
se effect a stop, in the totality of circumstances here, a person in
defendant's position could, upon producing identification in response to an
officer's inquiry, reasonably believe that he or she was not free to leave, at
least until the document is returned.

To the extent that defendant is relying
on some bare, per se notion of mere "physical receipt and
possession," that contention is unavailing as incompatible with Hall
and irreconcilable with our own pre-Hall precedent.� If, in Hall,
the officer's brief retention of the defendant's identification would have been
sufficient, in and of itself, to effect a stop, the Supreme Court could easily
have said so.� But it didn't.� Rather, the court emphasized the concurrence of
the officer contacting dispatch for a warrants check.� Hall, 339 Or at
19.

Further, we have repeatedly rejected
arguments that an officer's physical receipt of a driver's license per se
effects a stop.� See, e.g., State v. Woods, 102 Or App 671, 675,
796 P2d 1209, rev den, 310 Or 422 (1990) (where the defendant, in
response to officer's request, produced his driver's license and officer, after
taking it, "wrote down the license information in his notebook and
immediately handed it back to [the] defendant," "there had not been a
sufficient show of authority to constitute a stop"); State v. Jackson,
91 Or App 425, 428, 755 P2d 732, rev den, 306 Or 661 (1988) (concluding
that where, at officer's request, the defendant gave identification to officer
and made inculpatory admissions that his license had been revoked before the
officer ran a records check, inculpatory admissions were not made during the
course of an unlawful stop because they antedated the officer's "retention"
of the identification card for investigatory "record check purposes"
(emphasis in original)); accord State v. Starr, 91 Or App 267, 269-70,
754 P2d 618 (1988) (although officer's initial request for identification did
not "transform the encounter into a stop," subsequent retention of
the license for "five to ten minutes," "constituted a show of
authority sufficient to lead a reasonable person to believe that he was not
free to leave").

Nevertheless, I do agree with
defendant's alternative, broadly contextual argument that, in the totality of
the circumstances, the stop began when Gerba took defendant's identification.�
That is so because, although "retention of a suspect's
identification, or the length of retention * * *, is not the touchstone of
whether a stop has occurred," in this case, in the totality of the
circumstances, an objectively reasonable person in defendant's position could
have understood at that point that "he or she [was] under investigation
and [was] not free to leave" until, at least, Gerba returned the license.�
State v. Highley, 219 Or App 100, 109, 180 P3d 1230 (2008), rev
pending (2009).

The operative inquiry under State
v. Holmes, 311 Or 400, 409-10, 813 P2d 28 (1991), as construed in Ashbaugh,
225 Or App at 22-25, and amplified in Parker, is as follows:

"[A] Holmes type (b) inquiry implicates
conjunctive subjective and objective components--viz., the defendant
subjectively believed that he or she was significantly restrained and that
belief was objectively reasonable.� Consequently, as the party bearing the
burden of demonstrating the lawfulness of the search, the state can prevail
against a Holmes type (b)-based motion to suppress if it disproves either
of those conjunctive components.� That is, the state can prevail either (1) by
proving that the defendant did not believe that the officer had significantly
restrained or interfered with the defendant's freedom of movement or (2) if
such a belief would not be objectively reasonable.� [Ashbaugh, 225 Or
App] at 24.� In assessing whether 'such a belief isobjectively
reasonable under the circumstances,' the operative inquiry is whether '"a
reasonable person in defendant's position could have believed that the officers
significantly had restricted [his or her] liberty or freedom of
movement."'� [Ashbaugh, 225 Or App] at 25 (quoting Toevs,
327 Or at 536) * * *."

Parker, 225 Or App at 614-15 (emphasis omitted).� See
also id. at 615 (emphasizing that "the controlling inquiry" with
respect to the objective component of the Holmes type (b) inquiry
"is not whether every reasonable person would have so
believed, but, instead, whether a reasonable person could have so
believed" (emphasis in original)).

The circumstances here pertaining to
the objective component of the Holmes type (b) inquiry are undisputed
and straightforward:� Defendant and his girlfriend were shopping in an adult
bookstore, and the door to that store stated that persons under the age of 18
were excluded.� Gerba, a uniformed officer, entered the store and, immediately
upon seeing defendant and his girlfriend, asked defendant how old he was.� When
defendant responded that he was 22, Gerba obviously did not accept or believe
that response.� Instead, he asked defendant and his girlfriend if they had any
identification.� In response to that inquiry, they both produced driver's
licenses, which Gerba then took.

The circumstances of this case are
conceptually analogous to those in State v. Zamora-Martinez, 229 Or App
397, 211 P3d 349 (2009).� There, we reversed the defendant's convictions for
criminal possession of forged instruments, concluding that the trial court had
erred in denying the defendant's motion to suppress two forged documents that
the defendant contended were the product of an unlawful stop.� Id. at
399.

In Zamora-Martinez, Hillsboro
police and a federal immigration agent executed a search warrant at the
defendant's sister's house.� The defendant's sister was not present and,
because all the adults who were present were taken into custody, the sister's
children would have been left without adult supervision.� At his sister's
request, the defendant went to the residence to pick up the children.� Id.
at 399.� When the defendant arrived, the Hillsboro officers asked why the
defendant was there and, when he explained, the federal immigration agent asked
to see the defendant's identification.� Id. at 399-400.� The defendant
then produced an Oregon identification card, and the immigration agent asked
the defendant where he was from.� When the defendant responded,
"Mexico," the agent asked whether the defendant had any other identification--and,
in response, the defendant produced a resident alien card and a Social Security
card, both of which the agent immediately recognized as forgeries.� Id.
at 400.

The dispositive issue with respect to
suppression was whether the defendant had been stopped before he produced the
second set of identifying documents (which became the basis for the criminal
charges).� Id. at 400-01.� In reversing the trial court's denial of
suppression, we agreed with the defendant that (at least for purposes of the
objective component of the Holmes type (b) inquiry) the encounter
escalated into a stop when the agent "asked whether [the] defendant had
additional identification."� Id. at 401.

In so holding, we concluded that the
initial request for identification did not effect a stop because it was for a
valid noninvestigatory purpose (i.e., to confirm that the defendant was,
in fact, who he said he was--and, thus, was authorized to pick up the
children).� Id. at 403 ("[A] reasonable person seeking to take
custody of children would expect to be asked for identification.").� When,
however, the defendant presented an apparently valid Oregon identification
card, that valid noninvestigative purpose had been satisfied--and, thus, a person
in the defendant's circumstances could reasonably have understood that the
immigration agent's purpose in requesting additional identification "was
not to ascertain [the] defendant's identity before releasing his nieces into
his care, but to investigate whether [the] defendant was lawfully residing in
the United States."� Id. at 404.� Consequently, the agent's request
that the defendant produce additional identification effected an unlawful
stop.� Id.

Here, Gerba's initial question to
defendant about his age was the functional equivalent of the agent's initial
request for identification in Zamora-Martinez.� At least arguably,
Gerba's question was "noninvestigative" in nature.� However, once
Gerba indicated his disbelief of defendant's answer by requesting that he
produce identification, the investigative character of the inquiry was
manifest, and the encounter escalated into a stop.� Again, a person in
defendant's circumstances could reasonably have understood that the officer
intended, at least, to confirm the validity of the information in any
identification that was produced and that he or she was not free to leave until
(at the earliest) the officer received such confirmation.

With the beginning of the stop so
fixed, this case comports with the standard Hall construct.� That is,
inculpatory information (defendant's name and date of birth), which ultimately
was the predicate for Gerba's knowledge of defendant's "suspended"
status and consequent arrest, was obtained after defendant was stopped.�
If, however--as the lead opinion concludes--the stop did not begin until Gerba
actually called dispatch in defendant's presence, then the only information
that was obtained from defendant was elicited before the unlawful stop
began, and suppression would be improper.

(2)������ Gerba did not elicit any
information or consent from defendant after the stop and before he arrested
defendant for driving while suspended.

(3)������ Although Gerba learned of
defendant's license suspension when dispatch responded to his initial contact
in defendant's presence, that response was based on defendant's identifying
information, which Gerba had lawfully obtained.

Thus, assuming arguendo the
premises of the lead opinion, the rationale for suppression reduces to the fact
that Gerba's initial contact with dispatch occurred while Gerba was still in
defendant's presence--and that, but for that circumstance, there would not
have been an unlawful stop.� However, defendant was not placed in any
constitutionally cognizable "disadvantage" vis-�-vis his
ultimate arrest because of that circumstance.� To be sure, defendant was
disadvantaged because of Gerba's call to dispatch in that, but for that
call, Gerba would never have known that defendant's license was suspended and,
in turn, would never have arrested defendant.� But there is nothing unlawful
about an officer contacting dispatch to confirm information; that is hardly an
unlawful police practice.� Bluntly, there is nothing constitutionally
objectionable about the call qua call.

Again, under the lead opinion's
reasoning, the constitutionally objectionable circumstance, transforming
otherwise lawful police conduct (the call to dispatch) into an unlawful stop,
was that the call occurred in defendant's presence.� But that circumstance had
no effect on the information that Gerba received from dispatch--i.e.,
dispatch would have informed Gerba of defendant's license suspension,
regardless of whether Gerba had called when he was outside the store, in
defendant's presence, or in his patrol car grabbing a quick gulp of coffee.� Nor
did that circumstance affect defendant's interactions with Gerba.� In short,
notwithstanding that Gerba called dispatch in defendant's presence, defendant
was "not placed in a worse position" with respect to his arrest than
if Gerba "had acted within the bounds of the law" by contacting
dispatch out of defendant's presence.� See Hall, 339 Or at 25.

I agree with the lead opinion that
the stop in this case did not occur until Deputy Gerba contacted dispatch.�
However, I do not agree that suppression is required here.� As discussed in the
concurrence, the only inculpatory information that was obtained from defendant
by questioning, consent, or observation was his name and date of birth.� That
information was obtained before Gerba made the contact with dispatch and
consequently, in my opinion, before the stop occurred.� Accordingly, for the
reasons explained in the concurrence, defendant suffered no constitutionally
cognizable detriment from the stop that requires suppression.� ___ Or App at
___ (Haselton, P. J., concurring) (slip op at 11-13).� I would affirm the trial
court's denial of the motion to suppress.� Therefore, I respectfully dissent.

1.We may not
apply the presumption from Ball v. Gladden, 250 Or 485, 487, 443 P2d 621
(1968), that, in denying defendant's motion to suppress, the trial court
implicitly found that defendant believed he was free to leave.� We are so
constrained not because of an absence of evidence in the record, but because it
is clear that the court's ruling was based on the "objectively
reasonable" prong of the Holmes analysis, and the court has not yet
completely analyzed the issue of defendant's subjective intent.� See State
v. Lantzsch, 229 Or App 505, 516, 214 P3d 22 (2009).

2.As defendant
notes, in State v. Starr, 91 Or App 267, 754 P2d 618 (1988), we held
that the defendant's identity was obtained as a result of an unlawful stop in
circumstances similar to those here.� Without reasonable suspicion that the
defendant was involved in criminal activity, a police officer asked the
defendant for his driver's license.� He retained the license for five to ten
minutes before returning it.� After the defendant left, the officer ran a
records check and discovered that the defendant's license was suspended.� He
followed the defendant and arrested him for driving while suspended.� The trial
court ruled that an unlawful stop began when the officer first asked the
defendant for his license, and it suppressed all of the evidence obtained after
that point, including the defendant's identity.� Id. at 269.� On the
state's appeal, we disagreed that the stop began with the officer's request,
but concluded that he had retained the license long enough for the encounter to
amount to a stop.� Id. at 270.� We affirmed the suppression ruling,
holding that the "defendant's identity was obtained as a result of the
unlawful stop" because the officer "did not have authority to compel
[the] defendant to do anything, including giving his name."� Id.�
However, the state did not argue, as it does here, that, because the defendant
voluntarily gave the officer his license before the stop began, evidence of his
identity was not a product of the stop.� Because we did not consider that
position in Starr, the case is not controlling here.

1.I fully
appreciate that, in this procedural posture, my use of "stop"
ostensibly begs the question.� After all, both Judge Rosenblum and I agree that
the ultimate determination of whether defendant was stopped will depend on the
trial court's finding on remand regarding defendant's subjective belief as to
whether his freedom of movement had been significantly impaired.� See, e.g.,
State v. Parker, 225 Or App 610, 616-17, 202 P3d 205, adh'd to as
modified on recons, 227 Or App 413, 206 P3d 259 (2009); State v.
Ashbaugh, 225 Or App 16, 28, 200 P3d 149 (2008), rev allowed, 346 Or
257 (2009).� Still, "stop" is unavoidable, and useful, shorthand in
this context.

4.To be sure, as
the state points out, there is no crime of being "underage in an adult
bookstore" (or some functional equivalent).� Rather, culpability under
potentially applicable statutes runs solely against the owner, operator, or
manager of such an establishment.� See, e.g., ORS 167.080 (a person
commits the crime of displaying obscene materials to minors "if, being the
owner, operator or manager of a business or acting in a managerial capacity,
the person knowingly or recklessly permits [an unaccompanied] minor * * * to
enter or remain on the premises" where various materials are "visibly
displayed").

However, Gerba did not tell defendant and
Rodriguez that his ostensible investigation pertained solely to the manager or
proprietor of the establishment.� Further, the statutes governing licensed
establishments selling alcoholic beverages do provide that a person
under the age of 21 is criminally liable if he or she "enter[s] or
attempt[s] to enter any portion of a licensed premises that is posted or
otherwise identified as being prohibited to the use of minors."� ORS
471.430(3).� Consequently, unless the "reasonable person" standard
requires complete command of the Oregon Revised Statutes--which Gerba himself
candidly acknowledged he did not have ("I don't know the statute off hand,
but there is a statute that prohibits explicit material to minors")--a
person in defendant's circumstances could reasonably have understood that he or
she was the subject of a criminal investigation.